Whitfield v The Queen [2014] NTCCA 7

 

 

PARTIES:                                         WHITFIELD, Ryan

 

                                                         v

 

                                                            THE QUEEN

 

TITLE OF COURT:                           COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

 

JURISDICTION:                               CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          CA 10 of 2013 (20928097)

 

PRONOUNCED:                               16 July 2013

 

PUBLISHED:                                    21 March 2014

 

HEARING DATE:                             16 July 2013

 

JUDGMENT OF:                              SOUTHWOOD, BLOKLAND and BARR JJ

 

APPEALED FROM:                          RILEY CJ

 

CATCHWORDS:

 

CRIMINAL LAW – Applications for extension of time and leave to appeal against full restoration of suspended sentence – manifestly excessive – competence of counsel – failure to apply for adjournment – failure to contest breaches – unavailability of evidence – applications dismissed

 

Sentencing Act s 43(3), (5), (7)

 

Bukulaptji v The Queen (2009) 24 NTLR 210; Cranssen v the King (1936) 55 CLR 509; Murphy v R [2005] NTCCA 15, applied

 

REPRESENTATION:

 

Counsel:

    Applicant:                                    J Adams

    Respondent:                                 W J Karczewski QC and D Jones

 

Solicitors:

    Applicant:                                    Self

    Respondent:                                 Office of the Director of Public Prosecutions

 

Judgment category classification:   B

Judgment ID Number:                      Sou1402

Number of pages:                            22


IN THE COURT OF CRIMINAL APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Whitfield v The Queen [2014] NTCCA 7

No. 10 of 13 (20928097)

 

 

                                                     BETWEEN:

 

                                                     RYAN ANDREW WHITFIELD

                                                         Applicant

 

                                                     AND:

 

                                                     THE QUEEN

                                                         Respondent

 

CORAM:    SOUTHWOOD, BLOKLAND and BARR JJ

 

REASONS FOR JUDGMENT

 

(Delivered 21 March 2014)

 

The Court:

[1]       On 16 July 2010 the applicant was sentenced to three years and six months imprisonment for the crime of aggravated robbery. The sentence of imprisonment was ordered to be suspended after the applicant had served 18 months in prison. On 20 December 2013 Riley CJ revoked the suspension of the sentence and ordered the restoration of the whole of the balance of the suspended sentence for the crime of aggravated robbery. His Honour sentenced the applicant to one year and eight months imprisonment with a non-parole period of 11 months. The restoration of the balance of the suspended sentence was ordered because the applicant had committed further breaches of the suspended sentence.

[2]       On 28 February 2013 the applicant applied for an extension of time and leave to appeal the restoration of the suspended sentence passed by Riley CJ on 20 December 2012. The time limit for filing an application for leave to appeal expired on 17 January 2013. The applicant was initially unrepresented before this Court. Mr Adams then appeared on 16 July 2013 at short notice to advise the applicant but did not seek to make any submissions beyond the written submissions already filed by the applicant.

[3]       On 16 July 2013, the Court of Criminal Appeal heard and dismissed both applications because the applicant failed to demonstrate that he had an arguable case. The Court of Criminal Appeal stated that the reasons for decision would be published at a later date. Following are our reasons for decision.

Grounds of the applications

[4]       The grounds of the applications are as follows.

1.        The sentence that was imposed on the applicant on 20 December 2012 was manifestly excessive in light of the applicant’s efforts to rehabilitate himself.

2.        There was inadequate preparation time for the plea on sentence which was heard by Riley CJ on 20 December 2012. This resulted in crucial information/evidence not being present and certain support documentation not being available.

3.        The applicant’s counsel failed to contest some of the alleged breaches of the order suspending the applicant’s sentence which was passed on 16 July 2010.

4.        Error on the part of the sentencing judge finding the breaches proved in light of the applicant’s evidence about his problems with other participants in the rehabilitation program.

5.        Failure of the applicant’s counsel to explain the applicant’s legal rights to him.

6.        Failure of the applicant’s counsel to apply for an adjournment until all documentation was present and reviewed by the applicant.

The facts

[5]       On 23 August 2009 the applicant and his co-offender were together in a motor vehicle driven by the applicant. At some point, a young female friend joined them. The three of them went to a party near Gunn Point and the applicant and his co-offender drank some alcohol. They then travelled back to Darwin.

[6]       When they were near the Trailer Boat Club, the applicant and his co-offender agreed to rob someone. The co-offender then drove to Lambell Terrace.  The victim was spotted near the intersection of Lambell Terrace and Smith Street. The co-offender stopped the motor vehicle and he and the applicant got out and walked past the victim. They then turned back and the applicant said to the victim, “Give us what you have fucking got.” He then punched the victim in the face. The co-offender tackled the victim against a concrete wall next to the footpath and punched him twice to the head. The victim fell to the ground and curled up into a foetal position for protection. The applicant punched the victim three times while he was on the ground. He took the victim’s mobile telephone and wallet and the offenders drove off.

[7]       As a result of the attack, the victim suffered a seven centimetre laceration to his left forehead, a bleeding nose, facial grazing and grazing to his left elbow.

[8]       As a result of his criminal conduct, the applicant was charged with the crime of aggravated robbery, which has a maximum penalty of imprisonment for life.

[9]       The applicant’s offending was in breach of a suspended sentence of imprisonment imposed by the Court of Summary Jurisdiction. Seven months and 14 days, of the sentence passed by the Court of Summary Jurisdiction remained held in suspense when the applicant committed the aggravated robbery.

[10]    Before he sentenced the applicant for the crime of aggravated robbery, Riley CJ was told that the applicant began misusing drugs and alcohol when he was 13 years of age. The authorities had experienced little success in assisting the applicant with this problem. However, the applicant was interested in undertaking a residential rehabilitation program to try and overcome his substance misuse.

[11]    The applicant had a criminal history at the time he was sentenced by Riley CJ. He had prior convictions for property offences and offences of dishonesty but no prior convictions for offences of violence. His past sentencing dispositions included community work orders, supervision and detention.

[12]    The following conditions were imposed on the applicant by Riley CJ.

1.        That he be subject to supervision by a probation and parole officer and obey all reasonable directions of the parole officer.

2.        He is not to associate with any person specified in a direction by a probation and parole officer.

3.        He will, at the direction of such officer, immediately enter into the Drug and Alcohol Services residential rehabilitation program based at Salonika Street, Stuart Park, or any other program assessed as suitable, participate fully in that program, and do nothing to cause his early discharge.

4.        The offender will not purchase or consume alcohol and will submit himself to testing as directed by the probation and parole officer or a police officer.

5.        The offender will not consume a dangerous drug and will submit to urine testing as directed by the probation and parole officer for the purpose of detecting the presence of dangerous drugs.

6.        The offender will participate in assessment, counselling and/or treatment for substance misuse and/or anger management as directed by a probation and parole officer.

[13]    When sentencing the applicant for the crime of aggravated robbery Riley CJ, among other remarks, made the following remarks.

The offences committed by the prisoners were serious. They formed a plan to rob someone and went searching for a victim. They attacked him causing him the injuries which I have described. The consequences for the victim of such an attack were serious and entirely predictable. It was a cowardly attack by two fit young men upon a man who was unable to defend himself.

The victim was, as both offenders must have been aware, particularly vulnerable at the time of the attack. There was unnecessary violence and the prisoners left the victim lying in the street. The callousness of their conduct is reflected in the telephone conversation in which they advised the victim’s friends of the bashing. There was certainly no immediate remorse. In addition, there was no immediate acceptance of responsibility.

Whilst the prisoners are not to be punished for exercising their rights, they do not obtain any credit for early acceptance of responsibility or early remorse. The offenders are both young and entitled to some leniency on that account. However, the offending was committed in the fashion of an adult and the protective function of this Court requires a sentence which gives weight to denunciation, general deterrence and retribution.

A sentence must be imposed which reflects the need for general deterrence. In light of the circumstances of the individual prisoners, the sentence must also reflect the need for personal deterrence.

Mr Whitfield was aged 19 at the time of the offending. He is now 20. He is to be considered a youthful offender for the purposes of sentencing. He has a regrettable criminal history for a man of his young age. The conduct is mainly offences of dishonesty, including stealing, trespass and entry into buildings with the intent to commit crime. The offending history started in 2005 when he was a juvenile and continued through to the time of this offending.

He has in the past been given opportunities. He has been dealt with by community work orders, no further action orders, supervision and the like. He has spent periods in detention. His criminal history does not include any offences of violence. The present offending constitutes a breach of suspended sentences imposed in the Court of Summary Jurisdiction. I am told by counsel and I accept that there is a period of seven months and 14 days held in suspension at this time.

The Crown seeks full restoration of the suspended sentences because of the serious nature of the current offending, the fact that current offending constitutes an escalation of criminal conduct on the part of the offender and the numerous opportunities previously provided to Mr Whitfield by the courts. It is to be noted that the community based sentences have not had an impact upon the behaviour of Mr Whitfield and most sentences have ended in breach action.

The pre-sentence report records that Mr Whitfield had been consuming alcohol and ecstasy on the night of the offending. He has been in custody since the time of his arrest. In the intervening period, he claims to have thought a great deal about the offence and says that he accepts his conduct had a major impact upon the victim.

While in custody, he resumed his education and he is looking to enter trades studies.

Mr Whitfield began abusing alcohol and drugs around the age of 13. He has used cannabis, ecstasy and methamphetamine. The authorities have had little success in assisting him deal with this problem. He has expressed an interest in a residential rehabilitation program. He has been assessed as suitable for supervision and recommendations have been made as to conditions to be imposed. He is young and cannot be said to be without prospects of rehabilitation, however, they are moderate at best. The sentence must reflect the need for personal deterrence.

[14]    His Honour’s remarks make it clear that (1) substance misuse was a significant factor in the applicant’s criminal conduct, (2) the applicant did not have a good record of compliance with supervision orders, and (3) personal deterrence was a sentencing object which was to be accorded significant weight. His Honour structured a sentence which took into account each of these factors.

[15]    On 26 June 2011 the applicant was released from prison. On 25 July 2011, less than one month after the applicant was released from prison, he breached the conditions of his suspended sentence by failing to attend for urine testing. On 22 August 2011 the applicant failed to attend an identified rehabilitation program and on 24 August 2011 the applicant failed to attend for urine testing. On 12 September 2011 he failed to report to his probation officer. On 20 September 2011 he failed to attend for urine testing. On 21 September 2011 he tested positive for the consumption of cannabis. On 26 September 2011 he failed to report. On 5 October 2011 he failed to report. On 6 October 2011 he failed to report.

[16]    The applicant also breached the conditions of his suspended sentence by engaging in fresh offending. He pleaded guilty to possessing cannabis, unlawful possession and obtaining property by deception. The Court of Summary Jurisdiction convicted the applicant of possessing cannabis but imposed no further penalty. He was also convicted of the other two offences and placed on a good behaviour bond for 12 months on his own recognisance of $1500.

[17]    On 15 November 2011 the applicant appeared before Riley CJ for the breaches of his suspended sentence. His Honour found that the applicant had shown a flagrant disregard for his obligations under the terms of his suspended sentence and that the applicant’s failures went to the heart of the basis upon which a suspended sentence was imposed.

[18]    His Honour restored the balance of the sentence of three years and six months that was imposed for the crime of aggravated robbery which was a period of two years. The restored sentence was ordered to be suspended after the applicant served four months in actual imprisonment.

[19]    The sentence was suspended on the following conditions.

1.        Upon his release from prison the applicant was to enter the Salvation Army Sunrise Drug and Alcohol Services three months residential rehabilitation program.

2.        The applicant was to place himself under the supervision of the Director of Correctional Services for the same term and on the same conditions as previously ordered.

[20]    On 27 February 2012 the applicant was released from Darwin Correctional Centre. On the same day the applicant’s probation officer attended the Sunrise Centre and the applicant was directed to report by telephone on a weekly basis. However, the applicant failed to report as directed.

[21]    On 19 March 2012 the applicant’s probation and parole officer contacted the Sunrise Centre to find out why the applicant had not reported as directed. On 20 March 2012 the applicant’s probation officer directed the applicant to attend for urinalysis. He did so and the result of the test was negative.

[22]    On 16 April 2012 the applicant was excluded from the Sunrise Program for failing to comply with the program’s rules and policies. This constituted a breach of the conditions of the applicant’s suspended sentence. The applicant’s exit report stated that he was absent from the Sunrise Centre without permission on 12 March 2012, 4 April 2012, 10 April 2012 and 14 April 2012. The report stated that there were 13 occasions when the applicant was subject to random breath tests and drug tests and on each occasion he returned a negative result. However, the applicant failed to provide random breath tests on 9 March 2012, 4 April 2012 and 14 April 2012.

[23]    On 29 April 2012 the applicant committed the following offences: drive an unregistered motor vehicle; fail to comply with transport requirements; drive without P plates; possess ammunition without a permit or a licence; possess a firearm without a licence; and drive an uninsured motor vehicle. He was convicted of these offences ex parte by the Court of Summary Jurisdiction on 16 May 2012 and the applicant was fined. A number of these offences constituted a breach of the applicant’s suspended sentence of imprisonment.

[24]    On 11 May 2012, less than three months after the applicant was released from prison, the matter came back before Riley CJ for a further application for breach under s 43 of the Sentencing Act. There was no appearance by the applicant and a warrant for his apprehension was issued. On or about 13 December 2012 the applicant was apprehended in South Australia. The applicant’s absconding and leaving the Northern Territory constituted a further breach of the conditions of his suspended sentence.

[25]    On 20 December 2012 the applicant was brought before Riley CJ for breaching his suspended sentence of imprisonment. On that day, in the applicant’s presence, his counsel told the Court that the applicant admitted that he breached the conditions of his suspended sentence by absconding from the jurisdiction and by failing to complete the Sunrise Program. Mr Kaye also told the court that, save for the count of exceeding the speed limit, the applicant admitted the other offences referred to at [23] and that they constituted a breach of the applicant’s suspended sentence of imprisonment.

[26]    The applicant also gave evidence on 20 December 2012. During the course of his evidence the applicant stated the following. He left the Sunrise Centre on a couple of nights to see his girlfriend and on some occasions he was not caught. Staff at the Sunrise Centre spoke to him about absconding from the Centre. He admitted to them that he had absconded on two occasions when he was caught but he denied that he absconded on a third occasion. He also admitted that he missed a drug test on one occasion because he had absconded from the Sunrise Centre. However, he said that he did not take any drugs while he was at the Sunrise Centre. He admitted that he was not fully committed to the program because he did not believe he had a drug problem. He admitted the absences from the Sunrise Centre referred to at [22]. After he left the Sunrise Centre he went to his mother’s house but he still attended at Community Corrections until he left the Northern Territory. He told Community Corrections that he left the Sunrise Centre because he wanted to be with his mother who suffered from schizophrenia and had experienced “an episode”. Community Corrections told him that he would have to go back before the Court as a result of exiting the Sunrise Program. He knew that he would be returned to prison for leaving the Sunrise Program and he got into trouble for a number of traffic offences and an unlicensed firearm. That is when he decided to leave the Northern Territory and go to Queensland. As to the firearm charge, he said that a friend had placed the firearm in his car. He knew that he had done so and that is why he pleaded guilty to the charge. He made full admissions to the police about the charge. He and a friend drove to Queensland. He obtained full time employment as a delivery driver and storeman for a furniture shop in Mackay. He remained in that employment for three months. While he was in Mackay, he received counselling from a mental health service. He was suffering from panic attacks, anxiety and depression. He was given medication to treat his depression and panic attacks. He left Mackay in November 2012 and travelled to Adelaide where he obtained full time employment at a food processing place. While in Adelaide he also enrolled in a Certificate II Course in Engineering through the Adelaide TAFE which he was to start in February 2013.

[27]    It is apparent that the admissions made by counsel on behalf of the applicant, in the applicant’s presence, about the breaches alleged against the applicant were consistent with the applicant’s oral evidence in Court. The applicant failed to complete the Sunrise Program and he left the jurisdiction.

Sentencing remarks made on 20 December 2012

[28]    When making the order restoring the applicant’s suspended sentence Riley CJ made the following remarks, among other remarks:

On that occasion [sentencing for aggravated robbery] I dealt with you for the very serious offence of aggravated robbery which you committed in August 2009. In August 2009 you had, in company with another committed a violent attack upon your victim who was walking alone late at night. At that time you were 19 years of age. And you and your co-offender both had, what was then acknowledged to be drug and alcohol problems.

The offending [the aggravated robbery] was serious and you were sentenced to imprisonment for a period of three years and six months, with a direction that you be released after serving 18 months.

In suspending the sentence it was made plain to you that the intention was to have you undertake appropriate rehabilitation courses in order to address your alcohol and drug problems.

The conditions of the suspension were directed to that …

….

On 15 November 2011 I dealt with you for the breaches [at [15] to [18]]. At that time you had been assessed as being suitable to enter the Salvation Army Residential Sunrise Drug and Alcohol Services Rehabilitation Program. In all the circumstances, I resolved to restore the balance of the sentence and direct that you serve it. However, I then suspended the sentence after you had served a period of imprisonment of four months on the condition that you enter into the residential rehabilitation program. Again the thrust of the sentence was designed to enable you to undertake appropriate rehabilitation in order to address your alcohol and drug problems.

On 27 February 2012 you were released from prison. You were directed to the rehabilitation program and you were directed to report by telephone on a weekly basis. Unfortunately you did not report as required. You did enter the program on 27 February 2012 and you remained there until 16 April 2012. You left the program on that date.

A report obtained from the program administrators reveals that you were removed from the program for non-compliance. You had been absent without leave. You failed to supply random breath tests and you acknowledge each of those breaches.

It was said in the report, that you continually disregarded the rules and that you had no regard for the program. Indeed you have confirmed that in evidence today when you displayed an attitude of “I do not have a drug problem, I therefore do not need to do this course” Your commitment to the program was said to be questionable. Again you have confirmed that today.

On 17 April you contacted your supervisor and advised that you had issues with your mother who suffered from schizophrenia and you said that you were the main carer for her, that you wanted to be with her as she had suffered what you described as an episode. In fact, whatever you thought about your mother, that was not the true reason that you left the program. That was just an excuse.

You now say, that you wanted to get out of the program to get away from the people who were there. You say you knew those people from prison. You say they were using drugs and you wanted to get away from them. You therefore left the program.

You had less than a month to complete the program but you did not have the patience to stay. The fact that you now say, as an excuse for leaving the program that you wanted to get away from people with drugs makes it readily apparent that you do have a problem with drugs. Otherwise, you would not have had to get away. It would not have been a problem.

Having left the program, you then left the Territory. You say you wanted to start a new life. There is much to be said for the submission of Mr Jones that you did not necessarily want to start a new life. You simply wanted to do something and you did it, regardless of the consequences. You say now that you were aware of the consequences. You say now that you knew you faced gaol if you breached the terms of the order and yet you breached the terms of the order.

I accept that while you were away you obtained employment on a number of occasions and at the time of being arrested in South Australia you were in employment. I accept that you were doing well in that employment. I also accept that the tests by way of urine analysis which were conducted on you revealed negative results. That is to your credit.

What is not to your credit is that you have once again breached the order; this time by serious breaches of, causing yourself to be removed from the program, by leaving the jurisdiction, and re-offending, in that you committed some traffic offences.

Most importantly, from the point of view of your rehabilitation, you left the program at a time when it was incomplete, and in any event you did not have a commitment to the program which would have been to your benefit. The whole purpose of entry to that program was to enable you to deal with the problems you have and it seems you are still not committed to that process.

All the material that you have placed before me does not go anywhere providing a reason for you having left the program or having left the jurisdiction. In all the circumstances, it seems to me the only way to deal with the matter is to restore the sentence and to require you to serve it; I so direct. I set a non-parole period of 11 months.

The submissions of the applicant

[29]    The applicant informed the Court that the reason his application for leave to appeal had been filed out of time was that he applied for legal aid for an application for leave to appeal against sentence and more than four weeks elapsed before he was advised that his application for legal aid was unsuccessful.

[30]    In his affidavit in support of his application for leave to appeal against the sentence that was imposed on him on 20 December 2012, the applicant repeated much of what he had said during his oral evidence before the court on 20 December 2012.

[31]    In his written submissions the applicant made the following points:

1.        He understood that some of the breaches were to be contested.

2.        As he was having trouble with other participants in the rehabilitation program, he believed that he should not be held responsible for being exited from the rehabilitation program.

3.        He did not see the affidavits that were sworn by Ms Allison McFarlane.

4.        His lawyer did not apply for an adjournment so that references could be obtained from his employers in Queensland and South Australia.

5.        The records from the Sunrise Centre are not true and accurate.

6.        Riley CJ did not give sufficient weight to the positive steps that the respondent had taken to find work in Queensland and South Australia and to obtain treatment for his mental condition while he was in Queensland.

7.        Riley CJ did not give enough weight to the fact that the applicant had stopped taking drugs.

[32]    The applicant also placed before the Court a statutory declaration made by his girlfriend, a character reference from his employer at Furniture Circus in Queensland which was not signed, and some medical records. The statutory declaration states that the applicant told his girlfriend that he was having difficulty with some of the other residents at the Sunrise Centre and the character reference states that the applicant was a conscientious and diligent worker who showed respect to customers and to his fellow workers.

[33]    In addition to the documents referred to above the applicant also gave evidence that he would have liked to have placed before Riley CJ the following documents:

1.        Information from a hospital in Ayr Queensland relating to his mental health.

2.        A letter of confirmation from Sucrogen Sugar Mills regarding attending an apprenticeship aptitude test.

3.        A letter from Mission Australia in Kilkenny Adelaide confirming his attendance on them.

4.        A letter of acceptance from Adelaide TAFE regarding a course he had applied for enrolment in.

5.        A letter confirming previous employment with Villies Pies in Adelaide.

Consideration

[34]    In our opinion, none of the matters raised by the applicant demonstrated that the plea on sentence miscarried because of the manner in which his counsel conducted the plea on his behalf or for any other reason. Nor did the matters raised by the applicant demonstrate the Riley CJ erred in any way in sentencing the applicant on 20 December 2012.

[35]    The breaches which were the subject of the breach proceedings on 20 December 2012 were: (1) failure to complete the Sunrise Program; (2) absconding from the jurisdiction; and (3) the applicant’s fresh offending (excluding the speeding offence) committed on 16 May 2012. None of these breaches were contested nor could they be contested. The applicant gave evidence on 20 December 2012 and his own evidence confirmed that he was guilty of failing to complete the Sunrise Program and absconding from the Northern Territory. An Information for Courts was tendered in evidence which contained the applicant’s criminal history and it established that the applicant had been convicted in the Court of Summary Jurisdiction of a number of offences that he committed on 16 May 2012. In the applicant’s presence, and clearly on his instructions, his Counsel told the Court that the applicant admitted that he committed all of the offences recorded as having been committed on 16 May 2012, save for a speeding offence which was not taken into account by Riley CJ.

[36]    The applicant gave oral evidence before Riley CJ about the circumstances in which he was excluded from the Sunrise Program. His evidence was that he did abscond from the Sunrise Program from time to time to see his girlfriend and because he was having difficulty with some of the other residents. As a result of doing so he failed to undergo a number of drug tests. The only use, to which the applicant’s evidence about these matters could be put, if it was accepted by Riley CJ, was to explain the circumstances in which the applicant committed this particular breach, not to establish that there was no breach. Riley CJ found that he did not accept the applicant’s evidence about these matters. His Honour made no error in doing so.

[37]    All of the matters in Ms McFarlane’s affidavits were put to the applicant during his oral evidence before Riley CJ and he had a fair opportunity to deal with them. The applicant ultimately conceded in his submissions to this Court that he told a lie to Ms McFarlane about how he came to leave the Sunrise Centre. As to the exit report, during his oral evidence the applicant conceded (1) that he was absent from the Sunrise Centre without permission on 13 March 2012, 4 April 2012, 10 April 2012 and 14 April 2012; (2) to taking a few nights off to see his girlfriend and not getting caught; (3) that he was not fully trying to comply with the program because he did not believe that he had a drug problem; (4) that he could not really relate to the program because he had not used drugs for a number of years; (5) that he disregarded some of the Centre’s rules; and (6) that he failed to attend for a number of drug tests while he was absent from the Centre.

[38]    The further documents that the applicant sought to put before the Court would not have resulted in a different outcome. They are of no consequence in the sentencing process. The applicant gave unchallenged evidence about some of the matters listed at [33]. In his plea in mitigation the applicant’s counsel pressed upon the Court that the applicant was not a person without prospects of rehabilitation. In doing so he referred to confirmation he had received of the applicant’s employment in Adelaide and Queensland and reminded Riley CJ of the applicant’s attendance with respect to mental health services in Mackay. The Crown made no assertions to the contrary. Riley CJ accepted that the applicant had obtained work while he was interstate and that he did well in that employment. His Honour also took into account the fact that the applicant’s drug tests had all been negative. His Honour stated:

I accept that while you were away you obtained employment on a number of occasions and at the time of being arrested in South Australia you were in employment. I accept that you were doing well in that employment. I also accept that the tests by way of urine analysis which were conducted on you revealed negative test results. That is to your credit.

[39]    If the applicant’s counsel had obtained an adjournment and produced the documents when the Court reconvened there would have been no change to the outcome.

Did the sentencing Judge err in fully restoring the sentence?

[40]    The applicant’s real complaint is that the suspended sentence of imprisonment should not have been wholly restored. In other words, to do so was manifestly excessive. There was no merit in this submission. The applicant was extended considerable leniency and in the end Riley CJ had no option but to wholly restore the remaining balance of the suspended sentence of imprisonment.

[41]    The general principles applicable to appeals against sentence are well known. The presumption is that there is no error in the sentencing process. When the ground of appeal is that the sentence was manifestly excessive, it is for the applicant or appellant to show that the nature of the sentence itself affords convincing evidence that in some way the exercise of the sentencing discretion was unsound. To do so the applicant or appellant must show that the sentence was clearly and obviously, and not just arguably excessive.[1] The applicant has not done so.

[42]    Further, s 43(7) of the Sentencing Act (NT) states that a court must make an order restoring the balance of the suspended sentence unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed, including the facts of any subsequent offence. In Bukulaptji v The Queen[2] the Court of Criminal Appeal held that in determining whether it would be unjust to make an order restoring the sentence, or part of a sentence, the relevant factors included the following:

(a)           the nature and terms of the order suspending the sentence;

(b)           the nature and gravity of the breach and, particularly, whether the breach may be regarded as trivial;

(c)      whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour;

(d)      whether the breach demonstrates a continuing attitude of disobedience of the law;

(e)      whether the breach amounted to the commission of another offence of the same nature as that which gave rise to the suspended sentence;

(f)       the length of time during which the offender observed the conditions;

(g)      the circumstances surrounding or leading to the breach;

(h)      whether there is a gross disparity between the conduct constituting the breach and the sentence to be restored;

(i)       whether the offender had been warned of the consequences of a breach; and

(j)       the level of understanding of the offender of his obligations under the terms of the order suspending the sentence and of the consequences of a breach.

[43]    It is apparent that Riley CJ had regard to these factors when he restored the balance of the applicant’s suspended sentence of imprisonment. In particular, the applicant had been warned of the consequence of breaching the conditions of his suspended sentence, he understood his obligations under the terms of the order, the breaches were serious breaches, the applicant’s conduct evinced an intention to disregard his obligations, the breaches demonstrated a continuing attitude of disobedience of the law, and there was no justification whatsoever for any of the breaches. It was clearly not unjust to wholly restore the balance of the suspended sentence of imprisonment.

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[1]    Cranssen v The King (1936) 55 CLR 509 at 520; Murphy v R [2005] NTCCA 15 at [16].

[2]    (2009) 24 NTLR 210 at [35].